Sunday, 12 August 2012

Sometimes I pinch myself and wonder whether I am so lucky that these things are happening to me.

This week had some huge events for me. The big days were Wednesday and yesterday, Saturday.

Wednesday, round one: world leading ruling

On Wednesday morning I appeared in the Queensland Children's Court for a surrogate who was supporting an application by the intended parents for a parentage order to be made, transferring the parentage of the baby from my client to the intended parents.

What was unusual about this case was the legal background.

There are several ways for children to be conceived. The most obvious way is naturally, through sex. Another way is through artificial insemination.

When surrogacy occurs, however, the most common way is through an IVF process. With IVF, an egg is taken from a woman, and sperm from a man, and then the sperm is placed into the egg, in a glass tube, incubated, and voila! the cell is created, divided and fertilisation occurs.

At that point, things become interesting from a legal viewpoint. When is the child conceived? Is it when the act of fertilisation occurs, or is at a later time, when the embryo is implanted by the doctor in the woman, or even after that, when the pregnancy happens.

The obvious question to ask is: so what? What does it matter if conception occurs at fertilisation, or occurs at implantation or pregnancy? Well it does matter from a legal perspective. That's because in Queensland the Surrogacy Act says that to enable a parentage order to be obtained, there must be a written surrogacy arrangement, and the arrangement must be signed "before the child was conceived". There are similar laws in NSW, and proposed for Tasmania.

Normally this would not be a problem. Usually a couple intending to undertake surrogacy would sign the surrogacy arrangement, and then proceed with treatment.

However, when a frozen embryo is used, what conception means is critical. This is because a frozen embryo might have been created years before any surrogacy arrangement was signed, let alone contemplated. It might even be a donor embryo, donated from someone else. If the act of fertilisation were"conception", then the intended parents could never obtain a parentage order because the fertilisation occurred before the surrogacy arrangement was signed.

I made submissions to Judge Clare, SC, that conception was implantation or pregnancy, and not fertilisation. Thankfully she agreed, stating that the point was "obvious". While my view was the conception was at pregnancy, it wasn't so obvious to me. I was certainly concerned that a judge might say that conception occurred at cell division, fertilisation. it was hard to know which way a judge would go, given that there was no precedent to guide us.

This was the first time anywhere in the world that a decision had been made about when conception occurred. When I spoke at the world's first international surrogacy conference in Las Vegas last year, I asked the 200 odd lawyers present if they were able to tell me if they were aware of any decision on point. The general reaction was: "Good luck with that. That sounds very exciting. Let me know how you go. No, I'm not aware of any case on point."

Since then the story was covered in the Brisbane Times. What was striking about the story were the comments. Some of the commentators made it absolutely plain that they considered that conception was at fertilisation, not pregnancy.

Wednesday: round two: the domestic violence conference

That afternoon I spoke at the Violence Against Women conference in Brisbane. The topic I was asked to speak about was Migration and Family Violence. There are means to enable spouses who have migrated from overseas but who have been subjected to family violence from their partners to stay in Australia.

Roman Deauna

In preparing my paper, I asked my friend and migration agent Roman Deauna from Far and Wide Migration to provide me with feedback. It is fair to say that after speaking to Roman, that I had much more work to do on my paper! Thank you, Roman.

It was great seeing many old friends from the domestic violence sector at the conference, as well as meeting new friends. I had the privilege of speaking to about 300 or 400 attendees crammed into a conference centre, and then answering questions afterwards.

The presentation all seemed to go very well. I was introduced by old friend and colleague Zoe Rathus AM. I noted when I started that the first domestic violence conference that I had attended was in 1992, and that Zoe was one of the organisors.

Zoe had asked for three things about myself, when she gave the introduction about me to the plenary session. The first thing I said was that I cannot hold up my end of a conversation with Zoe. Zoe made the point that I have the ability to talk, and as to my accusation that I don't talk much: "You be the judge"!

It was a humbling experience. For me to get to the conference was merely walking to my car, driving there 10 minutes, parking the car and getting out. I met women who had travelled from interstate (who loved coming to Brisbane for the warmth!), and those from outlying islands in the Torres Strait, who had had to get to Horn Island, then Cairns, then fly to Brisbane. Another extraordinary woman was the co-ordinator of a domestic violence service in East Timor who was operating her service against great personal and societal difficulties, but somehow managed to get from Dili to Brisbane for the conference.

Wednesday: round 3: volunteering

If that weren't enough for one day, on Wednesday night I did my usual monthly volunteer service with the LGBTI Legal Service. Always satisfying.

Saturday

Thankfully there were a couple of days of normality before Saturday bowled along, when I spoke at the marriage equality rally in Brisbane. This time there was the largest crowd ever for one of these rallies in Brisbane: I would guess between 1500 and 2000. This is what I spoke about.

Saturday, 4 August 2012

"To Stephen,
Thank you for all your support on this special day. Bringing about awareness about Domestic Violence is so very important. Thank you for your choice to stand up against it.
Blessings,
Narelle".
Narelle Warcon, author of Blonde Roots

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.